Brogan v. Workers' Compensation Com'r

• Decision Date: 06 December 1984
• Docket Number: No. 16340,16340
• Citation: 174 W.Va. 517,327 S.E.2d 694
• Court: West Virginia Supreme Court
• Parties: Zeffie BROGAN v. WORKERS' COMPENSATION COMMISSIONER and Westmoreland Coal Co.

Page 694

327 S.E.2d 694

174 W.Va. 517

Zeffie BROGAN v. WORKERS' COMPENSATION COMMISSIONER and Westmoreland Coal Co.

No. 16340.

Supreme Court of Appeals of

West Virginia.

Dec. 6, 1984.

Rehearing Denied Jan. 10, 1985.

Syllabus by the Court

1. The Workers' Compensation Commissioner by virtue of W.Va.Code, 23-4-8, has broad authority and discretion to refer a claimant to a physician or physicians for medical examination or evaluation "whenever in his opinion it shall be necessary." The Legislature in enacting W.Va.Code, 23-4-8, intended to grant a claimant and an employer the right to select one, but only one, physician to examine and evaluate a claimant for each medical examination and evaluation conducted by such neutral physician independently selected by the Commissioner.

2. "Long delay in processing claims for workmen's [now workers'] compensation is not consistent with the declared policy of the Legislature to determine the rights of claimants as speedily and expeditiously as possible. W.Va.Code, 23-5-3a." Syllabus Point 1, Workman v. State Workmen's Compensation Commissioner, 160 W.Va. 656, 236 S.E.2d 236 (1977).

3. A physician's medical report is admissible in a workers' compensation case without the necessity of the physician's presence at an evidentiary hearing. The opposing party has the right to cross-examine the physician about his report and may challenge its authenticity or raise other evidentiary objections.

4. The underlying purpose of an evidentiary hearing in a workers' compensation case is to afford the parties an opportunity for examination and cross-examination of witnesses.

5. W.Va.Code, 23-4-8, when liberally construed to achieve the objectives of the workers' compensation law, requires claimants and employers to promptly exchange all medical reports and submit them directly to the Commissioner without waiting for an evidentiary hearing. Upon receipt, medical reports will become a part of the record in the case, subject to the right of an opposing party to object to their admissibility and to cross-examine the medical experts. Admissibility objections and requests for cross-examination must also be promptly submitted to the Commissioner to avoid needless evidentiary hearings.

Timothy G. Leach, U.M.W.A., Charleston, for appellant.

Anthony J. Cicconi, Shaffer & Shaffer, Madison, for appellee.

HARSHBARGER, Justice:

The claimant, Zeffie Brogan, appeals a final decision by the Workers' Compensation Appeal Board that affirmed a ruling by the Workers' Compensation Commissioner reducing his permanent partial disability award from 20% to 15%. Brogan asks us to limit the number of disability evaluations a claimant can be required to undergo. He also contends that the Appeal Board was clearly wrong in granting him only 15%. We conclude that W.Va.Code, 23-4-8 does place restrictions on disability evaluations and agree that Brogan is entitled to a 20% award.

Chronological review of this litigation is necessary to illuminate claimant's principal argument and the practical problems that prompted his plea for limitations on disability evaluations. We have included the disability estimates by examiners in the procedural history; the physical findings of the medical examiners are reviewed later to the extent their medical reports are properly in evidence.

Brogan sustained an injury to his right knee during the course of employment in April, 1978, and later underwent surgery for a torn meniscus. Following surgery and return to work in July, 1979, he was referred by the Commissioner to Dr. A.A. Abplanalp for a permanent partial disability evaluation. Based upon Dr. Abplanalp's findings and recommendation, the Commissioner granted a 20% permanent partial disability award on August 11, 1980.

The employer, Westmoreland Coal Company, protested this award by letter of August 27, and the Commissioner acknowledged receipt of the protest by letter dated September 10, and notified all parties that the employer was entitled to a hearing to be scheduled later. On October 7, the Commissioner gave notice that a hearing had been set for November 25 in the courthouse at Madison, Boone County, and that any request for a continuance had to comply with W.Va.Code, 23-5-3a and the rules and regulations of the compensation fund. Brogan then obtained counsel who, by a November 18 letter, successfully requested a continuance because he had just entered the case and had other hearings elsewhere on November 25.

Thereafter, the employer made arrangements, evidently independent of the Workers' Compensation Commissioner, for Brogan to be examined by Dr. Elwood H. Heilman, an orthopedic surgeon. In a December 5 report, Dr. Heilman estimated permanent partial disability at 10%.

On December 19 the employer asked the Commissioner's authorization to have Brogan examined by Dr. C.A. Stevenson at the employer's expense. The Commissioner granted this request on December 30, giving notice of the approval by a form that advised Brogan that the Commissioner believed the employer's request was reasonable and that Dr. Stevenson had been requested to notify him of an appointment date for examination. Dr. Stevenson examined Brogan on January 20, 1981, and reported his findings to employer's counsel by letter bearing that date. He suggested an award of no more than 5% award.

On April 8, the Commissioner again gave notice that a hearing had been set for May 7 in Madison. Brogan's counsel, by letter dated April 17, again requested a continuance because he had several hearings scheduled on the same day, this time in Charleston. The Commissioner postponed the hearing on April 21.

On September 3, the Commissioner gave notice that a hearing had been scheduled for October 5 at Madison. This time, counsel for both parties appeared, and on the employer's behalf medical reports from Drs. Heilman and Stevenson were introduced, without objection, subject to claimant's right of cross-examination. At the conclusion of this brief hearing, Brogan's lawyer moved to continue the hearing until the next available Charleston docket in order to review the employer's medical evidence and determine if he would cross-examine either doctor or offer rebuttal medical evidence. There being no objection, the case was continued to the next available Charleston docket.

By notice dated March 11, 1982, the Commissioner scheduled another protest hearing for April 27 at Charleston. At this hearing, Brogan's counsel introduced a medical report dated December 22, 1981, prepared by Dr. George F. Fordham, subject to the employer's right of cross-examination, stating that the 20% disability recommendation previously awarded was certainly "not out of reason". At the conclusion of this hearing, the case was continued without objection to the next available Charleston docket on motion of employer's counsel who wanted time to decide whether to cross-examine Dr. Fordham.

The record does not disclose the date of the next Charleston hearing docket, but in any event on May 10 ¹ counsel for the employer requested the Commissioner to refer Brogan to Dr. K.H. Lee for another medical examination at the employer's expense. This request, like the earlier request for Stevenson's examination, alleged no facts showing a need for further medical examination or for another physician's opinion. On May 28 the request was granted and Dr. Lee conducted his evaluation and advised the employer's counsel of his findings by letter on June 16. He recommended a 7% permanent partial disability award.

On October 6 the Commissioner set a fifth evidentiary hearing for November 9 in Charleston and the employer's counsel moved to introduce Dr. Lee's report at this hearing. Brogan's counsel objected, asserting that his client lacked the financial ability to "match the employer report for report." He argued that his client was unfairly disadvantaged by the financial disparity existing between the parties.

Asserting that the Commissioner should have some role in defending the initial disability award, he moved that the Commissioner refer Brogan to another physician of the Commissioner's choosing. Counsel for the employer did not oppose this motion and explained that the only reason the employer desired three medical examinations was the large spread in the disability estimates. Dr. Lee's report was admitted over objection, the motion was referred to the Commissioner, and the claim was submitted for decision.

The Commissioner on December 23 denied Brogan's motions to strike the employer's third medical report and for an independent medical evaluation, and reduced his permanent partial disability award to 15%, making all payments above 15%, overpayments subject to recovery per W.Va.Code, 23-4-1d. Brogan appealed this ruling and the Appeal Board affirmed, finding that the Commissioner had properly applied the liberality rule and had not disregarded any medical evidence. It did not address counsel's objection to the employer's third medical report or for an additional examination by a neutral physician. This appeal followed.

I.

Our analysis of the legal question begins and ends with examination of the language of W.Va.Code, 23-4-8. This section, entitled "Physical Examination of Claimant", provides, as relevant here:

"The commissioner shall have authority, after due notice to the employer and claimant, whenever in his opinion it shall be necessary, to order a claimant of compensation for a personal injury other than occupational pneumoconiosis to appear for examination before a medical examiner or examiners selected by the commissioner; and the claimant and employer, respectively, shall each have the right to select a physician of his or its own choosing and at his or its own expense to participate in such examination. The claimant and employer shall, respectively, be furnished with a copy of the report of examination made by the medical examiner or examiners selected by the commissioner. The...